• Jeff Cosby has achieved re-certification as a specialist in civil trial law for the third time and has now been board certified for 15 years.
  • New case on “notice” in slip and fall suits provides help to governmental agencies
  • Chioma Deere co-presented a Continuing Judicial Education (CJE) session to judges on Judicial Management of Electronic Discovery in Palm Beach County.
  • Phil Wiseberg obtains a dismissal with prejudice on the eve of trial in property insurance case.
  • In Bryant v. Mezo, Carri Leininger obtained favorable opinion from the Fourth DCA recognizing the Plaintiff’s failure to disclose prior medical treatment was fraud and justified dismissal of the Plaintiff’s lawsuit.
  • Jim Williams intervened in complex construction/banking litigation on behalf of a local county obtaining a stay and potentially saving the county from a judgment that would have deprived the county of over a million dollars in collateral.
  • Chioma Deere co-presented a Continuing Judicial Education (CJE) session on Judicial Management of Electronic Discovery at the 19th Judicial Circuit to judges from St. Lucie, Martin, and Okeechobee counties.
  • Lee Baggett and Jeff Cosby spoke at the Orlando Claims Conference on Exposing Financial Bias of Treating Doctors.
  • Carri Leininger obtains summary judgment for CGL carrier in coverage dispute arising out of a multi-million dollar construction defect case.
  • Jessica Gregory obtains summary judgment for Property Owners Association in ADA/FHA case.
  • Phil Wiseberg and Jim Williams obtain a defense verdict in an automobile negligence suit
  • Phil Wiseberg achieved dismissal of a federal copyright infringement lawsuit on behalf of a local university…
  • Carri Leininger wins appellate victory in controversial juror texting case, Murphy v. Roth
  • Jim Williams succeeds with Palm Beach County jury returning defense verdict for half clients’ pre-trial offer

Declaratory judgment based on a wear and tear/marring exclusion

With Carri S. Leininger, Esq.

Plaintiffs filed an action against Tower Hill consisting of three counts: breach of contract; declaratory judgment based on a wear and tear/marring exclusion in the insurance policy; and declaratory judgment seeking declaration that Tower Hill may not unilaterally determine the Actual Cash Value of the loss.

During litigation, Tower Hill served a Proposal for Settlement to each Plaintiff pursuant to Florida Statute section 768.79, which were rejected. A jury later returned a verdict in favor of Tower Hill. Tower Hill then moved for attorney’s fees based on the proposals for settlement. The trial court determined that Tower Hill was not entitled to fees because Plaintiffs’ Complaint sought both equitable relief and monetary damages.

The Third DCA reversed the trial court ruling holding that the case against Tower Hill, in essence, was an “action for damages,” within the meaning of section 768.79(1), because it was apparent that the true relief sought by the Plaintiffs was monetary damages, rather than equitable relief. As such, Tower Hill’s proposals for settlement were not invalidated by the Plaintiffs’ inclusion of declaratory judgment counts in a cause of action that, in actuality, sought money damages. DiPompeo Construction Corp. v. Kimmel & Associates, Inc., 916 So.2d 17 (Fla. 4th DCA 2005), Nelson v. Marine Group of Palm Beach, Inc., 677 So.2d 998 (Fla. 4th DCA 1996), and Diamond Aircraft Industries, Inc. v. Horowitch, 107 So.3d 362 (Fla. 2013)

The takeaway: a court should look past the procedural vehicle used in a complaint and discern what true relief is sought when determining the validity of a Proposal for Settlement/offer of judgment.

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